Under the Radar

Blog Roll

DOJ to court: Don't hear senators on our time

By JOSH GERSTEIN

12/28/2012 09:15 PM EST

The Obama Administration told a federal appeals court Friday that if it wants to hear a presentation from lawyers for three senators in a case about potential indefinite detention of U.S. citizens, the court should not take that time away from Justice Department attorneys representing the executive branch.

On Wednesday, lawyers for Sens. John McCain (R-Ariz.), Lindsey Graham (R-S.C.), and Kelly Ayotte (R-N.H.) asked to make a presentation to the U.S. Court of Appeals for the Second Circuit on behalf of Congress, as that court considers a lower court injunction against the use of the National Defense Authorization Act of 2012 to detain Americans. In that motion, the senators' attorneys said the Justice Department did not oppose their request.

However, the Justice Department chimed in Friday afternoon saying that what it told the senators' lawyers was, in essence: "Not on our time."

In a two-page filing (posted here), Obama Administration lawyers also suggest that the senators' position is not as interesting or distinctive as they've suggested in court papers.

"With respect, it would be highly unusual, and we believe unwarranted in a case such as this, to take argument time from the parties who are subject to a district court’s injunctive order to allow individual members of one component of the legislative branch to provide their views of the meaning and purpose of a federal statute that -- as amici themselves agree... -- expressly states that it did not change existing law," the Justice Department wrote.

Also, DOJ refers to the senatorial triumvarate as the "three amici," which doesn't quite have the ring of the "three amigos," but is getting there.